(WASHINGTON) — On Wednesday, Attorney General Merrick Garland issued a stern warning to those who would seek to harm election officials.
“I will reiterate again today, these cases are a warning if you threaten to harm or kill an election worker or official or volunteer, the Justice Department will find you and we will hold you accountable,” Garland said at a press event.
But more than three years after the Department of Justice announced a task force to “promptly and vigorously prosecute” offenders who threaten election workers, lawmakers and election officials have raised concerns about the federal government’s ability to effectively prosecute cases and deter threats ahead of the November election.
Election officials and advocates have criticized the task force for what they call a lack of transparency regarding its investigations, saying there have been yearslong delays in providing accountability, and that the task force has brought far too few cases following an onslaught of threats related to the 2020 election.
Of the more than 2,000 threats referred to the FBI by election workers, the Justice Department has opened 100 investigations, according to figures released in April. In total, the task force has charged 20 people and landed 15 convictions.
The numbers are modest, in part, because many of the threats received by election workers are protected by the First Amendment. But that’s done little to reassure the community of election workers and officials who have been left disillusioned by threats and harassment.
“It makes it really difficult to want to do the job when it also feels like your community, your state and your nation have turned on you,” said Amy Cohen, executive director of the National Association of State Election Directors. “You never know really if what you’re submitting is being investigated. You never really have any understanding of why something isn’t investigated.”
When reached for comment, a DOJ spokesperson highlighted the task force’s work engaging with election workers through more than 100 meetings and trainings, as well as helping FBI field offices and U.S. attorneys’ offices expand their capacity to investigate threats to election workers.
And ahead of the November election, Garland said “task force representatives” will be on the ground meeting with election workers and hosting events with the FBI to address issues and potential crimes.
But as Election Day approaches and threats to election workers persist, calls for action from the Justice Department have grown louder. In July, Sen. Jon Ossoff, D-Georgia, launched an inquiry into the DOJ’s work protecting election workers, and a group of senators last month wrote to Attorney General Merrick Garland saying that “more must be done to counter these persistent threats and ensure that election workers can do their jobs.”
As part of their inquiry, the group of senators asked the DOJ to tell them how many threats have been identified by the task force and the number of ongoing investigations and prosecutions. As of this week, the Justice Department had not responded to their request for more information about the task force’s progress.
‘Help is on the way’
The DOJ’s task force was launched in 2021 as election officials faced a torrent of threats related to the 2020 election. Led by the DOJ’s Public Integrity Section, the group was tasked with reviewing individual reports of threats, then partnering with United States attorney’s offices and FBI field offices to investigate and prosecute those cases.
“A threat to any election official, worker, or volunteer is, at bottom, a threat to democracy,” Deputy Attorney General Lisa Monaco wrote in a memo to prosecutors in June 2021. “We will promptly and vigorously prosecute offenders to protect the rights of American voters, to punish those who engage in this criminal behavior, and to send the unmistakable message that such conduct will not be tolerated.”
Election officials rejoiced, hoping the highly publicized announcement might serve as a deterrent and stem the tide of threats that was flooding their offices. At the time, 17% of local election officials reported having being threatened due to their job, while 32% reported feeling unsafe, according to a survey of election officials conducted in April 2021 by the bipartisan Brennan Center for Justice.
“When the DOJ announced a task force, we were thrilled in a lot of ways, because it was like, ‘Oh, there’s going to be help. Help is on the way,'” said Cohen.
But in the three years since the announcement, election officials have continued to face heightened threats, including physical violence, fentanyl-laced letters, swatting incidents, threatening voicemails, and violent threats on social media.
According to a May 2024 survey conducted by the Brennan Center, nearly 40% of local election officials reported experiencing threats, harassment, or abuse — a marked uptick from earlier surveys.
“The pressures that my colleagues fall under nationwide — over things that are literally unfounded — has become hard to deal with every day for folks who didn’t sign up for that kind of pressure,” said Dag Robinson, the county clerk in Harney County, Oregon.
‘Justice is not swift’
Despite the fanfare it received in 2021, the task force got off to a sluggish start. A year after it was formed, the Justice Department had only charged four cases despite reviewing over 1,000 referrals involving hostile or harassing contact, then-Assistant Attorney General Kenneth Polite told a meeting of election officials in 2022. Only 5% of referrals resulted in actual investigations.
While the task force’s success rate improved slightly over three years — charging 20 individuals, achieving 15 convictions, and losing one case — multiple election officials told ABC News that the modest number of cases compared to the thousands of threat referrals is disheartening.
“I could certainly recognize that my friends and colleagues across this country don’t feel supported,” said Julie Wise, the director of elections for King County, Washington.
In Colorado, officials say Secretary of State Jena Griswold has been the subject of thousands of abusive, harassing, and threatening communications over the last two years, including frequent messages calling for violence against her.
“You have a family, Jena,” one user said on social media “Think about that before you continue.”
Of the 1,140 threats referred to the Department of Justice by Griswold’s office since January 2023, 13 have led to investigations, and one case has been prosecuted, according to her office.
Election officials across the country say that in some instances, charges have been announced two or three years from the time a threat was made.
“It seems as though justice moves slowly, and I have seen that some clerks who were assaulted or threatened from the 2020 election just were [only recently] able to give their victim impact statements for the sentencing of those individuals — so justice is not swift.” said Barb Byrum, county clerk in Ingham County, Michigan.
‘Legally off the hook’
In response to election officials’ concerns, Justice Department officials say that charging cases requires a high burden of proof — and many of the threats targeting election workers are protected speech under the First Amendment. To land a conviction in a threats case, prosecutors must prove beyond a reasonable doubt that the statements are likely to be reasonably perceived as threatening — known as “true threats.”
“One of the biggest challenges in bringing these criminal cases is parsing what is a true threat from what is constitutionally protected speech,” according to Jared Davidson, counsel at nonprofit Protect Democracy.
Statements that are vague, hyperbolic, or figurative can be hard to prove as threats in a criminal setting, where defense attorneys can parse out the meaning of a statement to create reasonable doubt, said Davidson.
For example, the phrase “We’re going to take you out” could be perceived in multiple ways depending on the context of the statement, according to Eugene Volokh, a professor emeritus at UCLA School of Law.
“In context, that could mean ‘kill you,’ or it could mean ‘throw you out of office,'” Volokh said.
“A ‘vast majority’ of the communications directed at election officials, however offensive, are protected by the First Amendment and cannot be prosecuted,” then-Assistant Attorney General Polite said in 2022.
After prosecutors charged a Nevada man who, following the Jan. 6 assault on the Capitol, allegedly made multiple calls to the Nevada secretary of state’s office — including saying that they were “all going to … die” and wishing they would “all go to jail for treason” — a jury acquitted the defendant, illustrating the challenge of proving a true threat.
Adding to the challenge of bringing these cases is a 2023 Supreme Court decision that clarified the standard for true threats by finding that a defendant needs to have some awareness that their statement would be viewed as threatening.
“If you say something ambiguous and you don’t even realize that it might be perceived as a threat, you’re legally off the hook,” said Volokh.
Cohen, who said she has been publicly raising these concerns since early 2022, told ABC News that situation has led many election officials to believe that reporting threats can be “pointless,” which has led many of them to no longer refer threats to the task force. A 2024 Brennan Center survey showed that 45% of threats to election workers are unreported.
“It’s just hard not to feel, in some ways, like no one is taking this seriously,” Cohen said.
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